Scrutiny of gender bias gets more intense in New York courts.

A New York appellate court decision has made it even tougher for lawyers in that state to use gender as a reason to exclude prospective jurors from trials.

The July 14 ruling in People v. Allen not only requires that prosecutors in New York give gender-neutral reasons for their peremptory challenges, but it also adds another caveat: The prosecutor must be consistent. (No. 66448, 1994 WL 366889 (N.Y. App. Div. July 14, 1994).)

In Allen, Washington County Assistant District Attorney NancyLynn Ferrini was defending an appeal by a man convicted of rape, incest, and sexual abuse of girls. Defense counsel William Canale said the prosecutor began "systematically" eliminating all men from the panel during jury selection, using 14 of her 15 peremptory challenges for that purpose.

Canale called for a mistrial. He argued that the district attorney had eliminated any chance for men to hear the case, which deprived his client of his constitutional right to be tried by his peers.

Ferrini told the trial court, and the court accepted, that she excluded one man because he was unmarried and had no children and another because he was divorced. These were among her stated gender-neutral reasons.

The appellate court, however, concluded that Ferrini's reasons were inconsistent and that they were actually a pretext for excluding men from the jury. The court noted that Ferrini failed to eliminate a woman who was single and apparently had no children as well as a woman who wasn't questioned about her marital status at all.

"While ordinarily you don't have to give a reason for excusing jurors, you can't exercise challenges that would be unconstitutional," Canale said. "If the defense objects and thinks [a strike] looks unconstitutional, the prosecutor has to explain why it isn't, and he or she has to be consistent" to persuade a judge.

The 3-2 decision elicited a dissent by Justice John Casey. He commented that the majority's ruling "has imposed a new and cumbersome burden of proof" on prosecutors.

The court drew from Batson v. Kentucky in making its decision. In that case, the U.S. Supreme Court found that peremptory challenges could not be made on the basis of race. (476 U.S. 79 (1986).) In April, the Court extended to gender the same protections against discriminatory practices in jury selection. (J.E.B. v. Alabama, 114 S. Ct. 1419 (1994).)

University of Southern California law professor Erwin Chemerinsky said the Allen decision will likely make the administration of peremptory challenges more difficult for New York judges.

"Practically speaking, I think we'll also see more Batson motions being brought, but they aren't granted all that often," Chemerinsky added.